State v. Davis

No. 91-113

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
SHANNON DAVIS, a/k/a SHAWN DAVIS,
a/k/a CLEVE LAYTON VICK,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry Moran, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Marcelle C. Quist, Quist Law Office,
Bozeman, Montana
For Respondent:
Hon. Marc Racicot, Attorney General,
Joseph E. Thaggard, Assistant Attorney General,
Helena, Montana; Michael Salvagni, Gallatin
County Attorney, Martin Lambert, Deputy
County Attorney, Bozeman, Montana

Submitted on Briefs: December 12, 1991
APR 1 7 1992 Decided: April 1 7 , 1 9 9 2
Filed:
2 SLd
2
CLERK OF SUPREWE COURT
STATE OF MOiWANA

Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
On April 19, 1990, the State filed an Information in the
Eighteenth Judicial District Court in Gallatin County, charging
Shannon Davis with Sexual Assault. On August 20, 1990, the State
amended its Information to add one count of Solicitation o f
Tampering with Physical Evidence. The District Court, sitting
without a jury, tried the case on August 28-31, 1990. The court
found Davis guilty on both charges. Davis appeals. We affirm.
The issues are:
1. Did the District Court err when it permitted the
placement of an opaque screen between Davis and the witness stand
during the testimony of two child witnesses?
2. Did the District Court err when it admitted evidence of
pending sexual assault charges in another county?
3. Did the District Court err when it allowed the victim‘s
counselor to testify about the victim’s statements which were made
during the investigation of the case?
4. Did the District Court err when it denied Davis’ motion
for acquittal which was based on the sufficiency of the proof?
In the fall of 1989, Kathleen Pollard, a kindergarten teacher
at Monforton School in Bozeman, contacted the Department of Family
Services about her pupil J.R. Ms. Pollard had noticed that J.R.,
who was then five years old, was dirty, unhealthy, and emotionally
underdeveloped. She summoned social worker Gloria Edwards, who
interviewed J.R. on September 5, 1989. Ms. Edwards then sought
temporary investigative authority but was unsuccessful.

2
Consequently, J . R . remained in the care of her biological mother
for several more months while Ms. Pollard continued to monitor her
appearance and behavior.
On April 4, 1990, Ms. Pollard summoned Ms. Edwards again. Ms.
Pollard told Ms. Edwards that J . R . was much more dirty and unkempt
that day than she had been before, and that Ms. Edwards should come
and observe for herself. Ms. Edwards interviewed J . R . , who said,
'$1 have a babysitter, and his name is Shawn, and he makes [my

sister] take long naps, and he looks at my peepee for a long, long
time." J.R. repeated this story the next day, and indicated that
by "peepee" she meant her vaginal area. When Ms. Pollard asked
J.R. what happened next, J . R . said Ifhe just bodied his own and
waited for some stuff to come out of his thing." Subsequent
interviews by Ms. Edwards and child psychologist Eugenia Bellante
made it clear that J . R . was describing sexual activity.
On April 5, 1990, Ms. Edwards made arrangements to place J . R .
in a foster home. The next day Ms. Edwards took J . R . to the
Gallatin County Sheriff's Office, where J . R . identified Davis as
her babysitter in a photographic lineup. On April 19, 1990, the
State charged Davis with sexually assaulting J . R . The District
Court issued a bench warrant for his arrest that same day.
Davis could not provide bond and remained in jail throughout
the pretrial preparation of the case. During his incarceration he
placed 37 collect telephone calls to his friend John Kubichek. In
one of these phone calls in late April 1990, Davis asked Kubichek
to retrieve a parcel from Davis' trailer and destroy it. Kubichek

3
opened the package and found several photographs of a nude female
juvenile later identified as L.D.
Kubichek delivered the package and its contents to the
Gallatin County Sheriff's Office. At that time, several charges
were pending against Davis in Madison County for engaging in sexual
activity with L.D. Subsequently, the State amended its Information
to add a charge of Solicitation of Tampering with Physical
Evidence.
The District Court, sitting without a jury, found Davis guilty
on both counts after a trial on August 28-31, 1990. The court
sentenced him to 20 years at Montana State Prison for the sexual
assault and 10 years for solicitation of tampering. The court
designated Davis as a dangerous offender and ordered that he
complete the prison's sexual offender treatment program prior to
any future release on parole.
I
Did the District Court err when it permitted the placement of
an opaque screen between Davis and the witness stand during the
testimony of two child witnesses?
On August 22, 1990, the State moved the District Court €or an
order permitting protective screening during the testimony of J.R.
and A.C., a second child witness whose testimony would tend to
corroborate J.R.'s testimony by showing that Davis followed a
common scheme or plan in his sexual contact with children. The
court took preliminary evidence on the matter before trial, heard

4
argument by counsel, and then decided to permit placement of the
screen.
The District Court asked a newspaper photographer to
photograph the screen after it was in position, and the court then
appended those photographs to the record. The screen was a
free-standing, hinged space partition apparently intended for use
as a temporary room divider. As erected, it stood approximately
six and one-half feet high and spanned about ten feet across. The
screen was located directly in the line of sight from the witness
stand to the counsel table at which Davis was seated and was closer
to the counsel table than to the witness stand. With the screen in
place, the judge, prosecuting attorney, and defense counsel c o u l d
view the witnesses, but Davis could not. The screen was removed
after the second child witness finished testifying.
Davis now contends that the court erred in permitting the use
of this screen. He argues that this device violated his right to
confront the witnesses against him as guaranteed by the United
States and Montana Constitutions. In the court below, however,
Davis did not object or argue on the basis of the State
Constitution. By failing to object at trial on the basis of the
Montana Constitution, Davis waived his right to have us review that
issue on appeal. Section 46-20-104(2), MCA. Consequently, we do
not express an opinion today on whether the screening procedure
violated the Montana Constitution. We turn instead to the United
States Constitution and its accompanying case law.

5
 The United States Constitution provides that "[iln all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him." Amend. VI, U.S.

Const. The United States Supreme Court considered the application
of this clause to testimony by child witnesses in two recent cases,
Coyv.Iowa (1988), 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857,

and Maryland v. Craig (1990), 497 U.S. -1 110 S.Ct. 3157, 111 L.Ed.2d

666.

In Coy, the State of Iowa charged the defendant with two

counts of engaging in lascivious acts with children, a felony under
5 709.8, Iowa Code. The trial court permitted the state to erect
a translucent screen in front of the defendant. The state
legislature had authorized this procedure, § 910A.14, Iowa Code,
and the trial court did not undertake any independent inquiry into
the necessity for it. Lights were then thrown on the screen in a
way that allowed the defendant to see the witnesses without
allowing the witnesses to see him. Coy, 487 U.S. at 1014-15, 108

S.Ct. at 2799, 101 L.Ed.2d at 863.
The Iowa Supreme Court held that the "trial court had no
obligation to make an independent finding of necessity," thereby
implying that the legislature's determination of necessity in
adopting the statute was sufficient. State v. Coy (Iowa 1987), 397

N.W.2d 730, 733. The United States Supreme Court then reversed.
The Court held in a 6-2 decision that the use of the screen at
trial violated the defendant's rights under the Confrontation

6
Clause. Justice Scalia, writing for the majority, said that "the
irreducible literal meaning" of the Confrontation Clause is a right
to meet the state's witnesses "face to face" at trial. c o y , 487

U.S. at 1021, 108 S.Ct. at 2803, 101 L.Ed.2d at 867. Justice
Scalia declined to consider any exception to this "irreducible
literal meaning," but he suggested that if such exceptions did
exist they would require a greater showing than Iowa's general
legislative finding of necessity. Coy, 487 U.S. at 1021, 108 S.Ct.

at 2803, 101 L.Ed.2d at 867.
Justices O'Connor and Stevens concurred separately in order to
emphasize their
view that those [Confrontation Clause] rights are not
absolute but rather may give way in an appropriate case
to other competing interests so as to permit the use of
certain procedural devices designed to shield a child
witness from the trauma of courtroom testimony.
Coy, 487 U.S. at 1022, 108 s.ct. at 2803, 1 1 ~ . E d . 2 d at a68
0

(O'Connor, J., concurring). Justice O'Connor noted that "other
competing interests" might outweigh the "preference1I for
face-to-face confrontation in an appropriate case if the state
demonstrated that it "was necessary to further an important public
policy,I' but that Iowa's "generalized legislative finding of
necessity" was insufficient. Coy, 487 U.S. at 1024-25, 108 s.ct.

at 2804-05, 101 L.Ed.2d at 869 (O'Connor, J., concurring.) Justice
0' Connor subsequently elaborated on this position in Maryland v Craig.
.

In Craig, the State of Maryland charged the defendant with a

number of sexual offenses. The trial court found that in-court

7
testimony by the child victims would result "in each child
suffering serious emotional distress . . . such that each of these
children cannot reasonably communicate.I t Craig, 497 U.S . at _,
110 S.Ct. at 3162, 497 L.Ed.2d at 676. The Court then permitted
the children to testify by closed circuit television, a procedure
authorized by statute in Maryland. Section 9-102, Maryland Code.
This closed circuit television arrangement allowed the defendant to
view the witnesses without allowing the witnesses to view the
defendant.
The Maryland Court of Special Appeals ruled that this finding
was sufficient, but the Maryland Court of Appeals reversed. The
Court of Appeals held that the trial court's finding lacked the
specificity required by c o y . Craig v state (Md. 1989), 5 6 0 A.2d at
.
1128-29. The case therefore squarely presented the Supreme Court
with an opportunity to decide just how specific such findings of
necessity must be.
The Supreme Court reversed, holding that the trial court's
findings were not necessarily inadequate. Justice O'Connor,
writing for a 5-4 majority, elaborated on her opinion in Coy and

explained that the state's interest in protecting victims of child
sex crimes from physical and psychological injury "may be
sufficiently important to outweigh, at least in some cases, a
defendant's right to face his or her accusers in court." Craig, 497

U.S. at -, 110 S.Ct. at 3167, 111 L.Ed.2d at 683. The Court
reiterated that the key to this analysis is an "individualized"
finding of necessity. Craig, 497 U.S. at -, 110 S.Ct. at 3 1 6 9 ,

111 L.Ed.2d at 685.
The Court then set forth the following three-part test for
measuring the adequacy of these case-specific findings of

necessity:
[l] The trial court must hear evidence and determine
whether use of [a procedure other than face to face
confrontation] is necessary to protect the welfare of the
particular child witness who seeks to testify.
[Z] The trial court must also find that the child
witness would be traumatized, not by the courtroom
generally, but by the presence of the defendant.
[3] Finally, the trial court must find that the
emotional distress suffered by the child witness in the
presence of the defendant is more than de minimus, i.e,
more than Itmere nervousness or excitement or some
reluctance to testify."
Craig, 497 U.S. at -, 110 S.Ct. at 3169, 111 L.Ed.2d at 685

(citations omitted and elements numbered for convenient reference) .
In this case, the District Court relied upon Craig's three-part

test in entering the required individualized finding of necessity.
The court found as follows:
There has been testimony in this case that there is the
potential for these two young children that they will
sustain some trauma. I think the word "trauma" was
utilized by an expert witness in this case with respect
to [J.R.]. The word "trauma" was not used with [A.C.] in
his position as a witness, but the testimony indicates
that he will be extremely frightened, extremely scared
and, in the mind of the Court, with a 5 and a 6 year old,
there is little difference between the technical meanings
of words like "trauma" and scared. They're one in the
same. That's essentially what we're here to do in our
capacity as acting in the interests of the child
witnesses and protecting their welfare when they do
testify. So there is the potential that the children
could be traumatized by the mere presence of the
defendant.

9
 Likewise I think there is potential in this situation to
be, as I questioned Ms. Bellante very specifically, that
at least regarding [J.R.] the emotional distress suffered
is more than the minimum amount of nervousness that
ordinarily descends on any person that comes into a court
of law on a case of importance. I think the same kind of
circumstance can almost be presumed with respect to
witness [A.C.], so the Court is going to grant the motion
to screen the witnesses from the defendant.
Although the court did not track Justice O'Connor's language
exactly, we believe this "individualized" finding complies with all
three elements of the Craig test. The District Court found that the

potential for trauma existed, that it would result from the mere
presence of Davis in the courtroom, and that it would be more than
ordinary courtroom nervousness.
Although the defendant in this case could not personally
observe the witnesses, we do not find that fact dispositive.
In analyzing the essential elements required by the
Confrontation Clause, the Supreme Court, in Craig, included the

following elements:
The combined effect of these elements of confron-
tation--physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact--serves the
purposes of the Confrontation Clause by ensuring that
evidence admitted against an accused is reliable and
subject to the rigorous adversarial testing that is the
norm of Anglo-American criminal proceedings.
Craig, 497 U.S. at -I 110 S.Ct. at 3163, 111 L.Ed.2d at 678- 79.

The Supreme Court cited hearsay evidence as an example that
historically there have been many exceptions to the literal
requirement of face-to-face confrontation under the Confrontation
Clause. The Court stated:

10
 We have accordingly stated that a literal reading of the
Confrontation Clause would "abrogate virtually every
hearsay exception, a result long rejected as unintended
and too extreme. [Ohio v.] Roberts, 448 US [56] at 63,
65 L Ed 2d 597, 100 S Ct 2531. Thus, in certain
circumstances, "competing interests, if 'closely
examined,' may warrant dispensing with confrontation at
trial." Id., at 64, 65 L Ed 2d 597, 100 S . Ct 2531
(quoting Chambers v. Mississippi, 410 US 284, 295, 35
L Ed 2d 297, 93 S Ct 1038 (1973), and citing Mattox,
supra). . . .
Given our hearsay cases, the word
"confront," as used in the Confrontation Clause, cannot
simply mean face-to-face confrontation, for the Clause
would then, contrary to our cases, prohibit the admission
of any accusatory hearsay statement made by an absent
declarant--a declarant who is undoubtedly as much a
"witness against" a defendant as one who actually
testifies at trial.
Craig, 497 U.S. at-, 110 S.Ct. at 3165, 111 L.Ed.2d at 680-81.

The Supreme Court went on to conclude that the well-being of
children was such a competing interest that would excuse literal
compliance with face-to-face confrontation at trial. It held:
We likewise conclude today that a State's interest
in the physical and psychological well-being of child
abuse victims may be sufficiently important to outweigh,
at least in some cases, a defendant's right to face his
or her accusers in court.
Craig, 497 U . S . at- 110 S.Ct. at 3167, 111 L.Ed.2d at 683.
,

In this case, even though the defendant could not personally
observe the child witnesses who testified against him, the basic
elements relied upon by the Supreme Court in Craig were satisfied.

The child witnesses were physically present in the court, an oath
was administered, the children were cross-examined, and the jury
was able to observe the demeanor of the child witnesses.
Furthermore, as pointed out by the court in Craig, under the

circumstances present in this case, "these assurances of
reliability and adversariness are far greater than those required
for admission of hearsay testimony under the Confrontation Clause.t1
Craig, 497 U.S. at _, 110 S.Ct. at 3165, 111 L.Ed.2d at 682.

We hold that the District Court's case-specific finding
complies with federal law and that, therefore, it did not err in
permitting the placement of the screen between the witness stand
and the defendant during the testimony of the child witnesses.
I1

Did the District Court err when it admitted evidence of
pending sexual assault charges in another county?
Davis argues that the District Court erred in admitting
evidence of unproven sexual assault charges that were still pending
against him in Madison County at the time of trial. This argument
occupies just one page of his opening brief and does not
specifically attack any particular exhibit or witness. In his
reply brief, however, he makes it clear that this argument concerns
the charges against him for engaging in sexual activity with L.D.
He challenges the timeliness and specificity of the State's notice
as required by State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

We find no merit in this argument because evidence about the
charges against Davis for engaging in sexual activity with L.D. was
part of the corpils delicti of the evidence tampering charge. In State v.

Riley (1982), 199 Mont. 413, 426, 649 P.2d 1273, 1279, we said "the

State is entitled to present the entire corpusdelicti of the charged

offense including matters closely related to it, even when such

12
evidence discloses crimes other than those charsed. " (Emphasis
added.) We elaborated on Riley in state V. Romero (1986), 224 Mont.

431, 438, 730 P.2d 1157, 1162, when we said "[elvidence of acts
which are inextricably or inseparably linked with the crime charged
is admissible without resard to the rules qovernins 'other crimes'
evidence." (Emphasis added.)
The statute governing evidence tampering provides that:
A person commits the offense of tampering with or
fabricating physical evidence if, believing that an
official proceeding or investigation is pending or about
to be instituted, he:
(a) alters, destroys, conceals, or removes any
record, document, or thing with purpose to impair its
verity or availability in such proceeding or
investigation . . . .
Section 45-7-207, MCA. Thus, the State had to prove that Davis was
aware of the charges pending against him regarding L.D. and that he
ordered Kubichek to destroy potential evidence in order to impair
its availability in that investigation. We believe it was
necessary and appropriate for the State to explore these charges in
detail in order to prove Davis' awareness of the Madison County
charges and the evidentiary value in the Madison County
investigation of the items Davis ordered Kubichek to destroy.
We hold that the District Court did not err in admitting
evidence of the pending charges in Madison County.
I11

Did the District Court err when it allowed the victim's
counselor to testify about the victim's statements which were made
during the investigation of the case?

13
 Davis argues that the District Court admitted inadmissible
hearsay by permitting Eugenia Bellante to testify about
conversations she had with J . R . during the course of J . R . Is

therapy. Our review of the record reveals only one objection
during Bellante's testimony. This was a foundational objection
directed at the State's hypothetical question to Bellante about the
psychological impact on very young children of face-to-face
testimony against the person they have accused of sex crimes. The
court overruled this objection, and Davis does not predicate error
on this ruling by the trial court. We are unable to construe this
foundational objection as an objection to inadmissible hearsay.
Thus, the defense neither objected to any questions calling for
hearsay, nor moved to strike the answers that were given.
As we pointed out in Part I of this opinion, an objection at

trial is essential to preserve alleged errors for our review.
Section 46-20-104 (2), MCA. We therefore decline to review this
alleged error of the District Court in allowing Bellante to testify
about her conversations with J . R .
IV
Did the District Court err when it denied Davis' motion for
acquittal which was based on the sufficiency of the proof?
In the Amended Information, the State alleged that the assault
on J . R . occurred between October 1989 and April 1990. No witness
at trial provided direct testimony that the assault occurred on a
particular date falling within that time span. From this, Davis
asserts that the State did not prove beyond a reasonable doubt that

14
the offense occurred within the times alleged in the Amended
Information.
We conclude that the State did prove that the offense occurred
at least once between October 1989 and April 1990. In this regard,
the District Court found as follows:
The effect of this testimony is to present the court with
significant utzrebiitted circumstantial evidence reflecting
that as of September 5, 1989, [J.R.] did not know the
Defendant, but on April 4, 1990, she did know the
Defendant--thus the time period alleged in the
Information is covered by the evidence when we consider
that the Defendant had no access to [J.R.] from
September 5, 1989 until October 2, 1989. During that
period he was incarcerated in the Gallatin County
Detention Center. He was released on bail on October 2,
1989, and remained free on bail until April 10, 1990,
when Defendant was again arrested and confined in the
Gallatin County Detention Center where he has since
remained.
When [J.R.] told Ms. Edwards, on April 4, 1990, that she
then did know Shawn, her baby sitter, and thereafter told
of the significant sexual contact with the Defenaant, and
picked Defendant out of a photo lineup--after denying
that she knew any Shawn or Shannon or September 5, 1989
in conversation with Ms. Edwards--[J.R.] 1s acquisition of ktaowledge
of Defendant, and her testimony as to his sexual contact with her lznd to take
place dLiritag the precise period of time alleged in the Information.
[Emphasis in original.]
We will not overturn judge-made findings of fact unless they are
clearly erroneous. Stale v Cope (Mont.
. 1991), 819 P.2d 1280, 48

St.Rep. 949. We conclude that the circumstantial inferences the
District Court drew from the evidence are not clearly erroneous.
We hold that the because the District Court did not err in
finding that the offense occurred within the time alleged in the

15
amended i n f o r m a t i o n , it d i d n o t err i n denying Davis' motion f o r
acquittal.

Affirmed.

W e concur:

Justices

16
Justice Terry N. Trieweiler specially concurring.
I concur in the above opinion because the procedures taken by
the District Court were only objected to on the basis of the United
States Constitution. In applying the Confrontation Clause of the
Sixth Amendment to the United States Constitution, I defer to those
decisions of the United States Supreme Court, and specifically
Matyland v. Craig.

However, if the procedure taken to screen the defendant from
the child victim had been challenged on the basis of Article 11,
Section 24, of the Montana Constitution, it is clear to me that the
same result could not occur. I would, therefore, encourage
prosecutors who encounter a similar problem in the future to try to
find some way to protect child victims which does not preclude the
defendant from observing their demeanor and testimony while it is
being given.

17
Justice R. C. McDonough dissents.

I dissent as to the result of the majority opinion, I believe
there is a distinction between this case and the Coy and Marvland
cases which is dispositive. Coy v. Iowa (1988), 487 U.S 1012, 108
S.Ct. 2798, 101 L.Ed.2d 857; and Maryland v. Craig (1990 , 497 U.S.
_, 110 S.Ct. 3157, 111 L.Ed.2d 6 6 6 . The defendant in this case,
because of the opaque screening and its placement, could not
personally observe the witness while in the cited cases the
defendant was able to observe the witness during testimony.
The Sixth Amendment to the United States Constitution provides
two elements of protection for a criminal defendant. First, it
provides "the right physically to face those who testify against
him. Second, it provides the right to cross-examination.
Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L.Ed.2d 40, 107
S.Ct. 989. These two elements are interwoven. See Davis v. Alaska
(1974), 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347. It is
clear that the confrontation clause does not provide an "absolute"
right to face to face encounter, i.e. hearsay exceptions. See
Mancusi v. Stubbs (1972), 408 U.S. 204, 92 S.Ct. 2398, 33 L.Ed.2d
293, and the majority opinion. The hearsay exceptions are based on
the unavailability of witnesses and a requisite 'indicia' of
inherent reliability of such testimony. The exception of Coy and
Marvland is essentially an extension of the unavailable witness
exception.
The right of cross-examination is not solely a function of
defense counsel, it is accorded to the defense. By observing the
demeanor, etc., of the witness, the defendant can assist in the

18
cross-examination of the witness. The defendant usually is
acquainted with the witness, knows his or her traits, propensities,
etc., which through observation by the defendant would assist
counsel in cross-examination as to recollection, veracity and
communication skills of the witness. The defendant's ability to
assist counsel enhances the central concerns of the clause to
ensure reliability of the evidence by subjecting it to testing in
an adverse setting. Providing the defendant a right to face and
observe his accuser, even though the accuser does not have to face
the defendant, does not interfere with the findings of necessity of
Coy and Maryland that outweigh the requirement of literal face to
face meeting of the defendant and the accused.
In Kirby v. United States (1899), 174 U.S. 47, 55, 43 L.Ed.
890, 19 S.Ct. 5 7 4 , the Supreme Court held that a defendant may be

convicted only by:
witnesses who confront him at the trial, upon whom he can
look while beins tried, whom he is entitled to cross-
examine, and whose testimony he may impeach in every mode
authorized by the established rules . . . (Emphasis
added. )
Kirby is cited with approval in both Coy and Maryland. In both Coy

and Maryland the defendant was able to view the witness and thereby
had an opportunity to assist counsel in cross-examintion.
The defendant's right to view the witness' demeanor is an
essential part of cross-examination. Justice O'Connor writing for
the majority in Craiq states:
We find it significant, however, that Maryland's
procedure preserves all of the other elements of the
confrontation right: . .
. the defendant retains full
opportunity for contemporaneous cross-examination; and
the judge, jury, and defendant are able to view (albeit
by video moniter) the demeanor (and body) of the witness

19
 as he or she testified. (Emphasis added.)
at 110 S.Ct. at 3166. Justice O'Connor also refers to cross-
examination in a quote as the "greatest legal engine ever invented
for the discovery of truth." craiq, 110 S.Ct. at 3163, citing
California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d
489. Certainly denial of this right, by not allowing defendant to
view the witness either directly, by video (w),
by use of
lighting skills (Marvland), by one-way glass screens, or by other
means, would hamper the right and opportunity for effective cross-
examination. Not allowing the accused to view the witness
unnecessarily broadens the exception carved out in &y and
Marvland, and thereby violates the Sixth Amendment of the United
States Constitution.

Justice Karla M. Gray concurs in the foregoing dissent.

Justice William E. Hunt, Sr., concurs in the foregoing dissent.

20
 April 17, 1992

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Marcelle C. Quist
QUIST LAW OFFICE
1805 West Dickerson
Landmark Center, Bldg. 2, Suite 1A
Bozeman, MT 59715

Hon. Marc Racicot, Attorney General
Joe Thaggard, Assistant
Justice Building
Helena, MT 59620

Michael Salvagni, Gallatin County Attorney
Martin Lambert, Deputy County Attorney
615 s. 16TH
Bozeman, MT 59715

ED SMITH
CLERK OF THE SUPREME COURT

BY: